Church abuse crisis and the law

23 CommentsCarmel Ross |
13 March 2014

Reports from the Royal Commission this week have focused on the efforts of John Ellis to have his experience of sexual abuse as a teenage boy, perpetrated by a Catholic priest, acknowledged and adequately addressed by the Church. The Royal Commission hearing has heard a litany of factors involving legal issues and the internal workings of the Archdiocese of Sydney that must have had a profound impact on Ellis. His courage to continue to fight for justice is admirable.

The finding by the High Court that Australian law as it stands does not allow an individual to sue the Catholic Church is an untenable situation if our nation believes justice for individuals is important. The law will always have its limits, but the Ellis defence implies that no single part of the organisation to which the perpetrator Fr Duggan belonged — which conferred upon him the status and duty of a priest and to which he was bound by vows to obey and serve — is able to be held accountable in law for his illegal and immoral behaviour.

The complexity of the Church as an organisation often defies understanding, even by many who have spent their lives in religious vows or on the Church payroll. Canon Law provides mechanisms for separation into smaller organisations such as parishes and dioceses, and often these establish a civil legal identity by incorporating as an association or company. Yet all remain part of the Church. This legal separation of so many entities within the Church sometimes allows issues of justice and accountability to fall through the cracks.

Laws relating to incorporated bodies strive to protect the interests of those bodies, but may not pay much attention to the achievement of justice. Certainly the legal representatives acting on behalf of the Archdiocese of Sydney appear to have conducted themselves during the court process as if their sole purpose was to avoid any prospect of the Church being held accountable for the abuse suffered by Ellis.

Legal personnel are bound to work with the law as it is, yet they, like all people, must be endowed with an inner moral compass that reacts to obvious injustice unfolding before their eyes. How unfortunate not only for Ellis and the Church that the focus was on protecting the Church's resources rather than striving to achieve justice.

The comment to the Royal Commission by Ellis after his meeting in 2009 with Cardinal Pell that the internal processes of the Archdiocese of Sydney seemed like 'a runaway train with nobody at the wheel' reveals some deep and serious failings in the administration of justice within the Archdiocese.

That Pell and the trustees were unaware of the details of the legal action underway is difficult to fathom and equally difficult to justify. It still remains relatively uncommon for legal proceedings to be instituted by those who have experienced abuse via church personnel. Regardless of the considerable size of the Archdiocese of Sydney, one would hope that matters relating to abuse and legal issues taking place outside the Towards Healing process would be reported to the archbishop.

Equally, as the trustees are similar to a board of directors, if the Archdiocese is involved in legal proceedings that stem from an abuse claim, one would hope the reporting processes to them would draw this to their attention. It might also be expected that when a legal case involves the level of expenditure this one did and relates to an individual abuse claim, someone in the Archdiocese would hold responsibility for informing the archbishop and trustees.

If none of this was happening then there are many internal reporting improvements that will need to be addressed by Pell's successor. Yet anyone experienced in organisational culture will know that it is about more than the internal procedures — it's about internal culture too, and in a Christian organisation justice and pastoral care should be core elements of internal culture.

Pell's subsequent efforts to deliver pastoral and financial support to Ellis are appropriate and commendable as is his courage in stating on the public record that he believes it should be possible for the Church to be sued in abuse cases. Psychological research on the impact of trauma is clear that one of the first, essential steps to facilitate healing is that the victim has the opportunity to share their account of what happened with another person who accepts and believes their account. Much as it is possible for someone to make a false allegation, this seems to be relatively uncommon in practice.

More important is to listen in humility to those who have been wronged, and to take steps to protect them and others from the risk of harm in the future. Abuse claims do not belong in the civil courts, because an adversarial approach is likely to further harm the victim as they strive to convince others of the truth of their account, usually in a context where there were no other witnesses.

Hopefully an outcome of the Royal Commission will be for the Church to reconsider its practices in the Towards Healing process, because Ellis is not the first for whom this process has failed to deliver any positive outcome. Healing, reconciliation and inner peace rely on the quality of relationships that are formed when a victim comes forward, in particular the pastoral care and apology that is offered when harm has been done.

Carmel Ross is an organisational consultant in Western Australia specialising in human service organisations. A psychologist by profession, she has held a number of senior management positions in education and church organisations and holds degrees in theology, business and psychology.

Carmel Ross

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Carmel, you praise Pell for his "subsequent efforts to deliver pastoral and financial support to Ellis...." but dont mention that Pell refused to have the priest involved questioned to test the veracity of the claim. Pell also instructed the church barristers to not pay an out of court settlement to Ellis. Am I wrong or has Pell done a complete U-turn since ther commission started? What you describe is what SHOULD have happened with the Ellis but history showed it did not and Pell is stuck right in the middle not looking very flash

John13 March 2014

Carmel, I dont know whether you have been following the Royal Commission but the evidence points to Pell being very aware of what he was doing to frustrate Ellis in his search for justice. This article is not supported by the facts.

John13 March 2014

Carmel says: "Certainly the legal representatives acting on behalf of the Archdiocese of Sydney appear to have conducted themselves during the court process as if their sole purpose was to avoid any prospect of the Church being held accountable for the abuse suffered by Ellis."
Pardon my ignorance, but I thought legal representatives took instructions from those they represent?

Frank Golding14 March 2014

This article completely misstates the legal position with regard to Ellis's court case. It was not a decision of the High Court of Australia. Second, the judgment did not create a defence for the Church. It is trite law that unincorporated associations can't be sued eg surfing clubs, knitting clubs. It applies to all associations the same way. Individual members can be sued if they hold responsibility for what occurred. Eg they were involved in the recruitment of the abuser or they failed to have in place proper systems for supervising his access to children. All the Court of Appeal said in Ellis's case was that he had sued the wrong entities. Cardinal Pell had nothing to do with the priest's tenure and an unincorporated association is not responsible at law. There is no "Ellis defence" as such. The issue of reparation is a different one. The Commission is clearly coming at it from a lawyer's perspective. They clearly consider that it would be unjust for the Church not to compensate for the wrong done. There is a difference between a needs-based forward looking approach to calculating monetary reparation and a civil law wrongs-based approach. No amount can ever repair the person to the position they would have been in if the abuse had not occurred. For the Commission to go down that line would do an injustice to those who contribute financially to the Church and it would discriminate against Catholics.

George14 March 2014

John, the hearing hasn't even finished. Lets wait to see what the rest of the evidence yields, including the Cardinal's own version of events, before judging.

George14 March 2014

Monetary compensation to victims of abuse is an inadequate and distracting side-issue.
The Church has built up, over the Centuries, a Mystique about itself and its Ministers, in order to influence its followers, both for its own sake but also to help its followers to rise above their narrow self-centred interests. Unfortunately this 'mystique' has enabled some renegade representatives, not only to inflict abuse upon vulnerable believers, but also to be accorded protection and sanctuary, sometimes even immunity. To fulfil its duty of care, the Church needs to revoke this 'mystique' and set about its duty to become the servants of the Children of God, rather than assuming the mantle of God-guaranteed voices of God.

Robert Liddy14 March 2014

Why don't Eureka and Catholica start a petition instead of just griping? All Catholics want true justice for victims.Let the Bishops know.

Fr. Noel FitzSimons14 March 2014

I echo what George has written. Any victim can sue the person who assautled him or her. Generally, parents are not liable for the acts or ommissions of their child and bishops are not liable for the illegal or unlawful actions of priests in their dioceses. In relation to property, a bishop or the body corporate owning diocesan property has a legal and moral duty to deal with that property as a trustee for the good of the diocese. That duty conflicts with the moral duty to care for those suferring abuse. If Carmel were involved in a car accident injuring someone else's property, then the dispute is likely to be run by her insurance company without much reference to her. Similarly, my understanding is that claims of abuse are referred to the diocesan insurance company which then handles the claim with little reference to the insured. It is unfortunate that the legal structures of the church do not mesh well with our civil legal system. Each diocese is separate and each bishop is responsible to Rome, so rouge priests moving between dioceses is problematic. Our bishops need to arrange some kind of over-arching insurance cover sooner rather than later.

KIm Chen14 March 2014

I think the Archbishops or diocesan bishop should be sued because they affirm at ordination that the young seminarian chosen to be God’s representative on behalf of the church is a fit and proper person. Due to the personal nature of priestly work the bishop must insist upon regular supervision of all priests by persons properly qualified to address any immature emotional attitudes or developing psychological problems. Priests are accountable to their bishops and the bishops are accountable to the faithful because we are the vulnerable ones and bishops by their very rank and status, in choosing to train and ordain these men, have a duty of care towards the safety of God’s people.

Trish14 March 2014

George. A parish review of the Ellis case has concluded that Pell was knowingly involved in the lack of justice shown to Ellis.

John14 March 2014

Trish:- " they affirm at ordination that the young seminarian chosen to be God’s representative on behalf of the church is a fit and proper person."......
At the time of ordination it is likely that the seminarian WAS a 'fit and proper person', in the circumstances that then prevailed. But in the interim many things changed. There was the 'sexual revolution', the Dead Sea Scrolls; the changes in the Church after Vatican 2, but most pertinently of all, the undermining, by recent scholarly research, of many of the Traditions that had not been updated as they should have been. That left many Church representatives disorientated and confused, a prey to their baser instincts.
No one saw this coming and so no one was prepared for handling the many resulting problems. This does not excuse the abusers, but it helps explain the problems.

Robert Liddy14 March 2014

Does Cardinal Pell's belief that it should be possible for the Church to be sued in abuse cases mean that the Church in all State and Territory jurisdictions would support amendment of the law or is it just a personal opinion committing no-one?

Noel Gregory14 March 2014

One might argue whether Cardinal Pell’s late conversion to the view that the Church should be able to be sued in abuse cases, announced on the eve of being grilled by the Royal Commission, should be described as ‘courage’ or perhaps seen as an attempt to mitigate the grilling. In any event, Cardinal Pell needs also to recognise the full nature of the Church’s failings for which it should be accountable. The Ellis case considered in a legalistic fashion the responsibility of the Church for one of many priests’ heinous grooming and abuse of a child. This important issue can however distract from the more direct liability of the Church leadership for exposing more children to abuse by protecting alleged abusers, through deliberately not reporting them to civil authorities and through reassigning them as pastors with new opportunities for violation of more children (the ‘cover-up’).
When will the Church admit that it protected the institution at the cost of children and contrary to everything that it stands for? The autocratic and unaccountable structures of the Church are unChrist-like, nowhere demonstrated more horribly than in the protection of criminal abusers of children and its consequent liability for further abuses. Instead of spending millions on legal fees arguing that it cannot be sued, the Church should be asking how it can both mitigate the damage to those abused and fix a culture that failed so abysmally throughout the world; changes to processes is little more than a charade. There’s the real challenge for Pope Francis.

Peter Johnstone14 March 2014

I agree with George. The Church didn't set up an 'Ellis defence' - this was just the law as it presently stands and applies to any unincorporated body. Many Church bodies are incorporated, including almost all social welfare agencies. These bodies have an obligation to provide effective lines of accountability and appropriate supervision; if other Church bodies had these, they would have a better chance of preventing abuse. In any case, there'd be at least an individual who'd be accountable under the law. Bishops and major superiors should take note of this, whatever changes are proposed in civil law.

Joan Seymour14 March 2014

God has two feet justice an compassion. Why does this second term, let alone its action never seen to enter such discussions? Why always justice? Is it because by leaving out the reality of compassion then that leaves the church lawyers to do their job without concern for how it affects the victim? I am constantly drawn throughout all this to the parable of the Good Samaritan by Jesus (remember Him?). The only person who assisted the victim was a despised Samaritan, not the 'worthy religious of the time (and they had law on their side to be allowed to bypass the unclean). And what did the Samaritan actually do? Not only did he have compassion for the victim but he put his money where his mouth was.
I seriously question this sudden united approach of wanting to separate the so called pastoral from the financial: It reeks of abdication of true compassionate pastoral care and seeks to set up a new law in which those who represent the author of the parable to do only the 'nice' part and, I suspect, be a whole lot better off financially had they decided to keep the financial part of the pastoral care, and one based on full justice AND compassion. ANyone who has been through the Christian Catholic system will know exactly how well it parallels or doesn't the words of our founder and reason for existence as a church and as ourselves as followers of that founder. Please tell me if I have got this wrong and whether or how Jesus own desires for the spirit of his followers is still part of the whole equation.

Ed16 March 2014

That very few victims have initiated legal action is hardly surprising because such an action would be extremely costly and well beyond the means of those who have been so cruelly treated by the hierarchy. Sadly it is now far too late to repair the appalling damage.

David16 March 2014

I found it interesgting it was suggested the blame be laid at the feet of legal counsel.
I doubt if Corrs Chambers Westargeth would be happy, unless being Catholic were prepared to fall on the sword as a goodwill gesture.....

Lynne Newington16 March 2014

I hope that while the focus is on legal issues - Ellis defence, vicarious liability etc - that close attention will be paid to the explicit and implicit provisions of Canon Law and its attachments that support secrecy aka cover-up

John Casey16 March 2014

KIM CHEN asserts that "Any victim can sue the person who assautled him or her."
But wasn't that the whole point of the strenuous and extraordinarily expensive defence by the Church in Ellis v Pell ? Until very recently, that defence was precisely intended to ensure that Kim Chen's understanding would be nullified.
To quote another view "It created a legal fiction the church [had] relied on since: despite its huge wealth, the decision had it that the church was not a legal entity. It could not be sued. Its priests were not regarded as employees."
Now, just before Pell was to give last-word evidence to the Royal Commission into Institutional Responses to Child Sexual Abuse, Pell has declared that the Church would no longer rely upon that infamous case.
So, only from now forward, might Kim Chen's fondly held view become true - and then only provided that the legal costs can be accommodated. Ellis was ruined (in every sense), and the Church spent $_Millions in its defence.
Not such a good start for Rome's new chief accountant, perhaps ? Millions wasted to save how little ?
source - http://ow.ly/uD9kG

J Douglas16 March 2014

Over the years I have interacted with different process within the church as a victim and supporting others. I keep wondering what can we learn from the mistakes of the past and how can we go forward.
What I have continued to see is that compassionate listening, genuine apology and ongoing willingness to connect makes a real difference.
It also has struck me that dealing with money too often becomes legalistic and undermines healing processes.
I am aware of those who really should be supported and just won't go through the present legalistic processes. They just don't want the confrontation.
I'm left thinking there has to be a better way. I would just take the matter of compensation away from the institutions that failed to protect and in the process facilitated ongoing abuse of so many. I think it would be much better that some sort of board or tribunal be set up to look at each case and make decisions on the shape of the compensation.

john17 March 2014

"Paul McCann, the senior partner with Corrs Chambers Westgarth, which conducted the litigation for the church from 2004, has told the [Royal] Commission he had no doubt the instructions he received through Cardinal Pell’s private secretary Dr Michael Casey came from the Cardinal himself."
Read more: http://www.smh.com.au/national/royal-commission-george-pell-was-calling-all-the-shots-20140318-34zm2.html#ixzz2wHd11Yux

Frank Golding18 March 2014

Frank Golding's tip of Cardinal Pell calling all the shots....as cardinal....no doubt it was the same when Francis was beleagued with mothers seeking to know the fate of their children and answers sought for the disappearances of thousands, [including clergy] and human rights breaches in Argentina.......can they be trusted?
Draw your own conclusions.

Lynne Newington20 March 2014

Ms Newington re Pope Francis "calling all the shots" vis a vis Argentine &"The Dirty War":
#Graciela Fernández Meijide, member of the Permanent Assembly for Human Rights, said that there was no proof linking Bergoglio with the dictatorship. She told Clarín: "There is no information and Justice couldn't prove it. I was in the APDH during all the dictatorship years and I received hundreds of testimonies. Bergoglio was never mentioned. It was the same in the CONADEP. Nobody mentioned him as instigator or as anything."
#Ricardo Lorenzetti, President of the Argentine Supreme Court, also has said that Bergoglio is "completely innocent" of the accusations.

The broad support Francis receives from progressives, despite his unwillingness to even consider female ordination, demonstrates how marginalised women's issues really are in our society. He may have changed the game in terms of the Church's engagement with the poor, but this does not diminish the significance of his oppressive and outdated views on gender roles.

The conflict began with falling church attendances and a decision by the Koroit parish priest to rationalise resources. Although Regina Lane describes in detail the battles to save St Brigid's, her book is far more than a protest song against the power of the Catholic Church. The larger stories embodied at St Brigid's, the immigrant groups who formed the first congregation and their relationship to the first Australians, have continuing importance.

The appearance at the end of Francis' first year of Berlusconi's new magazine, Il Mio Papa, is testimony that the Pope is now mythical, a celebrity, and that the myth can be manipulated, marketed and monetised. It is difficult to give an accounting for celebrities, but merely popping their balloon also misses what in them attracts popular attention. So it is with evaluating what is distinctive about Francis and what he has contributed to the Church.

The greatest danger is that we expect too much from Francis. He brings a new perspective that has little to do with the preoccupations of the developed world. But we shouldn't kid ourselves that he is a closet progressive. The other danger is that he could turn out to be all show and no substance. His 'Gang of Eight' has not even begun to address the diabolically difficult problems embedded in reforming the curial structures of the Vatican.

No one can deny the impact Francis has had. The question remains whether the differences between him and his predecessor Pope Benedict XVI are a matter of style or substance. Francis has downplayed the prospects of major doctrinal changes, yet the rehabilitation of liberation theology and the bringing in from the cold of outspoken 'extreme centrist' theologian Cardinal Walter Kasper do reveal a fundamental shift.

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